Edwardsen v. State

• Decision Date: 11 May 1959
• Docket Number: No. 225,225
• Citation: 151 A.2d 132,220 Md. 82
• Parties: Edward EDWARDSEN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 82

220 Md. 82

151 A.2d 132

Edward EDWARDSEN v. STATE of Maryland.

No. 225.

Court of Appeals of Maryland.

May 11, 1959.

Charles J. Stinchcomb, Baltimore, for appellant.

Shirley Brannock Jones, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., J. Harold Grady, State's Atty. for Baltimore City, and Julius A. Romano, Asst. State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

These two appeals in one record are from judgments and sentences in the Criminal Court of Baltimore. In the first case, indictment No. 1900, the appellant was indicted in four counts for burglary, larceny, rogue and vagabond, and receiving stolen goods. He was represented by counsel employed by him, and elected a jury trial. The jury found him guilty of receiving stolen goods on September 15, 1958. After the verdict, his counsel stated to the court that 'my client informs me that he would like to file a motion for a new trial,' but that he (counsel) asked leave to strike his appearance and withdraw from further participation in the case. The request was granted, and the trial court deferred sentence in order that the accused might have an opportunity to obtain new counsel and perfect the motion for new trial. On October 24, 1958, he was brought before the court and sentenced to two years in the House of Correction, from May 25, 1958.

It appears that on September 23, 1958, the trial judge wrote the accused informing him that, under local Rule 40C (formerly Rule 30) of the Supreme Bench, he would be required to file with the clerk of the criminal court an original transcript of the testimony and three copies thereof within 5 days after the filing of the motion for new trial. ¹ The accused wrote a letter in reply, requesting the court to 'construe these contents in the nature of my petition for allowance of thirty days continuance in which to obtain the transcript and/or my pauperis petition for allowance to proceed on the motion as an indigent person so that your Honor can order the transcript to be furnished me without cost.' In reply, the trial judge granted the thirty-day extension 'on condition that the order for and payment of the transcript is forwarded immediately to the Court Reporter * * *. However, no such extension will be granted for the purpose of enabling you to raise the cost of the transcript. Under the Rules of the Supreme Bench the State of Maryland will not be required to pay for the cost of the transcript in connection with your motion for a new trial.' At the time of sentence the accused had not raised the $60 necessary to obtain a transcript, and had not employed new counsel. Upon the entry of appeal to this Court, counsel was appointed and he was furnished with a free transcript of the record.

We think there was a sufficient showing of indigency, and for the reasons stated in Johnson v. State, 219 Md. 481, 150 A.2d 446, we think the trial court erred in denying the request of the accused for a free transcript for use in the hearing upon the motion for new trial. No question of a possible alternate method of abbreviating or submitting a different, but adequate, record is here presented. Accordingly, this judgment will be reversed and the case remanded for the hearing of the motion for new trial. We express on opinion, under the circumstances, on the contentions of the appellant that the evidence was legally insufficient to convict, or on the other alleged errors in the rulings of the trial court in the course of the trial. Since there must be a new sentence imposed if the motion for new trial is denied, or, if granted, upon a new conviction, if there be one, we likewise express no opinion as to the alleged error in the remarks of the trial court in connection with the imposition of the sentence now set aside for further proceedings.

On October 29, 1958, the appellant was brought before the same trial judge on a bench warrant charging him, on petition of the Acting Chief Probation Officer of the Supreme Bench, with violation of probation granted under a previous conviction. It was shown that he had been convicted of larceny in 1952 (indictment No. 2860) and sentenced by the late Judge Moser on March 3, 1953, to six years in the Maryland Penitentiary from December 12, 1952; but on September 30, 1954, Judge Moser suspended the balance of the sentence and released the appellant on probation in care of the Probation Department for five years, subject to the standard conditions prescribed by the Supreme Bench. The petition filed in 1958 alleged that the appellant had violated the conditions set forth in the order of probation, in that he had failed to obtain approval before changing his residence and had failed to conduct himself in a law-abiding manner and avoid undesirable places and associates. After hearing, the trial court found him guilty of violation of probation, struck out the suspension of sentence, and sentenced him to seve the balance of the original sentence, four years and three months, to run concurrently with the two-year sentence imposed on the charge of receiving stolen goods.

The principal point raised on the second appeal is that the trial court failed to continue the case, or to appoint counsel for him, at the hearing on violation of probation. At the beginning of the hearing, counsel was present who had represented the accused in the previous case when he was convicted of receiving stolen goods. Counsel told the court he was unwilling to represent the accused any longer, and the court remarked that he had earned 'whatever fee you have paid him.' The accused said: 'I would like time to--,' but did not complete the sentence because of an interruption. The appellant's present court-appointed counsel states that the accused 'was obviously in the act of requesting time to secure another counsel,' and contends that there was a violation of Maryland Rule 723, in that, the court should have advised the accused of his right to counsel, and, if the defendant so desired, should have appointed counsel for him.

It seems to be conceded in this appeal that the trial court, acting through the late Judge Moser, had jurisdiction and authority to suspend the original sentence imposed in 1952 and place the accused on probation in 1954. Under sec. 277 of the Charter and Public Local Laws of Baltimore City (1949 ed.), as amended by chapter 529, Acts of 1951, the Criminal Court of Baltimore was empowered to suspend sentence and place an offender on probation 'at any time before the expiration of any sentence imposed upon such person.' The authority granted is broader than that granted by Code (1957), Art. 27, sec. 641, which authorizes such action during the Term of court. Maryland Rule 744c empowers the court to reduce a sentence within ninety days after sentence, or receipt of a mandate on appeal, but it does not in terms apply to the suspension of a sentence for purposes of probation. Rule 744c was apparently designed to modify the law in Baltimore City as laid down in Czaplinski v. Warden, 196 Md. 654, 663, 75 A.2d 766 and Wilson v. Warden, 200 Md. 652, 89 A.2d 227, both based on actions taken prior to 1951. Madison v. State, 205 Md. 425, 434, 109 A.2d 96. For present purposes we may assume that the local law is valid under sec. 60 Art. III of the Maryland Constitution, and that it was not modified by Rule 744. See Mutter, Probation in the Criminal Court of Baltimore City, 17 Md.L.Rev. 309, 316.

A proceeding for the revocation of a suspension of sentence and probation is informal in character and not subject to the limitations imposed by law upon the trial leading to a conviction. See Mutter, supra (p. 321); Jett v. Superintendent, 209 Md. 633, 640, 120 A.2d 580; Manning v. United States, 5 Cir., 161 F.2d 827. Somewhat the same considerations apply in reinstating sentence, as in imposing an original sentence. Cf. Driver v. State, 201 Md. 25, 31 et seq., 92 A.2d 570; Williams v. People of State of New York, 337 U.S. 241. 69 S.Ct. 1079, 93 L.Ed. 1337. In the absence of statute, many courts have held it is not even necessary to have a hearing. In the case of revocation of a conditional pardon by the governor, which may be distinguishable because the legal effect of a pardon is different, we have held that a hearing is required as a matter of due process. Murray v. Swenson, 196 Md. 222, 229, 231, 76 A.2d 150. The decision has been criticized as failing to distinguish between procedural and substantive due process. See note 29 A.L.R.2d 1074, 1087, and Mutter, supra (p. 319). Nevertheless, the same rule was stated and applied in Hite v. State, 198 Md. 602, 605, 84 A.2d 899, involving revocation of a suspended sentence by a magistrate. Swan v. State, 200 Md. 420, 425, 90 A.2d...